Karnataka High Court
Basavaraj S/O Revanasiddappa Bada vs Mallikarjuna S/O Channappa on 2 September, 2020
Author: P.N.Desai
Bench: P.N.Desai
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 02nd DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE P.N.DESAI
REGULAR SECOND APPEAL No.863/2006
BETWEEN:
Basavaraj S/o Revansiddappa Bada
Age: Major, Occ: Service in MR Medical
College, Gulbarga.
. .... APPELLANT
(By Sri.S.B Hangarki Advocate for Sri.B.D.Hangarki Adv.)
AND:
1. Smt.Gangabai W/o Mallikarjun
Age: Major, Occ: Household,
2. Shivsharnappa S/o Mallikarjun
Age: major, Occ: Service
Since deceased by his L.Rs
a. Munni W/o Shivasharanppa
Age: 50 years, Occ: household,
b. Amresh S/o Shivasharanappa
Age: 26 years, Occ: business
c. Nagamma D/o Shivasharanappa
Age: 24 years, Occ: Household
d. Chandamma D/o Shivasharanappa
Age: 22 years, Occ: Household
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e. Rajamma D/o Shivasharanappa
Age: 20 years, Occ: household
All R/o Opp: Dr.Mallaraomalle Hospital
Jagath Gulbarga.
3. Siddaram S/o Mallikarjun
Age: Major, Occ: Service
4. Channamallappa S/o Mallikarjun
Age: Major, Occ: Service
Since deceased by his L.Rs Respondent Nos.1 to 3
5. Basavaraj S/o Mallikarjun
Age: Major, Occ: Service
All R/o Jagat Locality Gulbarga.
... RESPONDENTS
(By Sri Harshavardhan R.Malipatil Advocate
For R.1, R2( R2 (a to e) R3 & R5
R-4 is dead L.R is already on record)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CODE OF CIVIL PROCEDURE PRAYING
TO ALLOW THE APPEAL BY SETTING ASIDE THE
JUDGMENT AND DECREE DATED 13.01.2006 PASSED IN
R.A.NO.247/2004 PASSED BY LEARNED JUDGE, FAST
TRACK COURT VI GULBARGA REVERSING THE
JUDGMENT AND DECREE DATED: 13-03-1998 IN O.S.
NO.213/1995 PASSED BY I ADDL. CIVIL JUDG (JR.DN.)
GULBARGA IN THE INTEREST OF JUSTICE AND EQUITY.
THIS REGUALAR SECOND APPEAL HAVING BEEN
HEARD AND RESERVED FOR JUDGMENT THIS DAY, THE
COURT DELIVERED THE FOLLOWING
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JUDGMENT
1. This appeal arise out of the Judgment and decree in R.A.No.247/2004 passed by Presiding Officer, Fast Track Court-VI Gulbaraga wherein, the First Appellate Court has allowed the appeal and set-aside the judgment and decree passed by the trial Court in O.S.No.213/1995 dated: 13-03-1998, consequently the suit of the plaintiff is dismissed before the trial court.
2. This appeal was filed by the appellant is the plaintiff before the trial court and the respondents are the defendants before the trial court. The defendant Nos.2 & 4 died during pendency of proceeding and their L.Rs. were on record.
3. For the purpose of clarity and convenience and to avoid repetition of discussion, the parties are referred in this Judgment as per their respective ranks before the Trial Court.
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4. The appellant/plaintiff has filed suit before the trial court for specific performance of contract and injunction against the defendants. The brief contention of the plaintiff is that the plot bearing Nos.7, 8 & 9 situated in survey No.43/1 of Badepur Gulbarga shown in the layout plan approved by the Mandal panchayat, Taj Sultanpur are situated within the boundaries as shown in paragraph No.2 of the plaint. The defendant was the owner of land bearing survey No.43/1 situated at Badepur Taluka & Dist: Gulbarga. He converted the agriculture land into Non Agriculture land as per the Order of Special Deputy Commissioner Gulbarga in file No.REV/ LND. NA/76/82-83 dated: 27-07-1983. Thereafter he prepared a layout in the said land and made number of plot of different sizes and in due course got the layout approved by the Mandal Panchayat Taj Sultanpur on 10-04-1991. But before the layout was got approved to the defendant agreed to sell three plots described in paragraph No.2 of the plaint to the plaintiff 5 as per the agreement for sale entered into between the plaintiff and defendant. The defendant had agreed to sell each plot for Rs.10,000/- and those plots are measuring 30 feet x 40 feet as told by the defendant. Accordingly on 06-03-1990 there was a sale agreement between the plaintiff and defendant and plaintiff paid the entire sale consideration amount of Rs.30,000/- to the defendant. The defendant having received the consideration amount executed an agreement for sale in favour of the plaintiff and in part performance of that agreement of sale, the defendant delivered the actual possession of these plots. The plaintiff is in possession of those suit plot as purchaser from the date of that agreement till today.
It is further case of the plaintiff that, defendant executed a separate receipt for having received Rs.30,000/-. When the plaintiff enquired with the defendant after the agreement, the defendant told that he has submitted layout plan for approval and it has 6 not been approved. The defendant went on postponing the same. Ultimately on 15-02-1993 the plaintiff issued legal notice to the defendant and the said notice returned on the ground that the defendant was not found. The plaintiff on 27-02-1993 got issued another notice, but the defendant refused to received it. Then the plaintiff personally met the defendant and requested to execute the sale deed, again the defendant told that layout plan was not approved so he could not execute the sale deed, for that reason the defendant refused to receive the notice issued by the plaintiff and the defendant promised to execute the sale deed immediately after the layout was approved. In the month of March 1995 the plaintiff came to know that the layout had been approved on 16-04-1991 itself and as per the layout the plots agreed to be sold and delivered to the plaintiff are plot Nos.7, 8 and 9 as described in paragraph No.2 of the plaint. So the plaintiff got issued another legal notice on 29-03-1995 7 requesting the defendant to execute registered sale deed in respect of suit plot within ten days from the date of receipt of the notice. The defendant received the said notice on 31-03-1995 and did not give any reply and did not execute the sale deed. The defendant is trying to sell those plots to others and denied to give the suit plots to the plaintiff. In view of the agreement for sale and receipt of the consideration by the defendant from the plaintiff and delivery of possession of the plots to the plaintiff in part performance of the suit agreement of sale the defendant has no right to transfer the suit plots in favour of others. But the defendant is trying to dispossess the plaintiff from the suit plots. Therefore the plaintiff is constrained to file this suit for specific performance of suit agreement of sale and for issue of perpetual injunction to restrain the defendant from interfering in the plaintiff's peaceful possession and enjoyment of the suit plots and also from alienating in any manner. The plaintiff is all along ready and willing 8 to perform his part of performance or agreement of sale in getting registered the sale deed. Therefore, the plaintiff has filed this suit for specific performance of suit agreement of sale and to issue permanent injunction.
5. The defendant appeared before the trial court and filed written statement. In the written statement the defendant has contended that, the boundaries shown in paragraph are not correct and also paragraph No.2 of the plaint as false. The area of the suit property is also not mentioned. The property alleged in the agreement for sale is quite different as shown in paragraph No.2. The defendant has contended that, he was the owner of the land bearing survey No.43/1 situated at Badepur, Gulbarga is meaningless. The defendant is still owner of the land bearing survey No.43/1. He has admitted about converting the land into Non Agriculture to the extent of 2 acres 8 guntas 9 and got approved the layout from the Mandal Panchayat Taj Sultanpur in the year 1991. The plaintiff and defendant were working in the same office i.e., M.R Medical college Gulbarga. In the said layout there are in all 47 plots, out of which plot Nos.39 to 46 each measuring 30 feet x 40 feet and remaining plots i.e. 1 to 3 and 47 are of different size. The defendant has denied the contention of the plaintiff that he has entered into an agreement for sale of alleged three suit plots and denied that he has agreed to sell those plots for Rs.10,000/- each measuring 30 feet x 40 feet.
The defendant has contended that, he never agreed to sell the suit plots, so the question of fixing the value of each plot at Rs.10,000/- does not arise. As per the Mandal Panchayat layout none of the plots measuring 30 feet x 40 feet are in existence. In the year 1990, the value of the each plot was more than Rs.15,000/- as it was situated on the ring road of Sedam road. The defendant has denied that the plaintiff 10 is in possession of the same and he handed over the possession to him. He has denied the contents of the plaint averments are all false. Even the contention regarding issuing of notice and it was returned on the ground that, the defendant was not found are all quite false. The defendant always resides at Gulbarga only. The defendant has not received any such notice either on 15-02-1993 or 27-02-1993, nor he has refused any notice. This is all created by the plaintiff in collusion with the postman. The defendant has denied all other contention of plaintiff requesting him to execute the sale deed and the defendant promising him are all false and imaginary. In fact as soon as layout was approved by the concerned authority the defendant informed the same day to the officials on the same day and also outsiders his intention to sell the plots of his land, as interested person if any come forward to purchase the plots. The plaintiff also knows this fact from the beginning i.e., from the date of approved of the layout. 11 The plaintiff only to bring this suit within time has contended about issuing of notice. The defendant on the very next day receipt of the notice on 31-03-1995 met the plaintiff and informed having issued such false notice. He has informed that, the question of selling those plots does not arise. The plaintiff was never in possession of any plot or plots in survey No.43/1 the question of his dispossession does not arise. The contention regarding issuing notices are all false. The defendant has denied all other contents of the plaint as false and imaginary. The suit of the plaintiff is barred by limitation.
The defendant has filed additional written statement contending that himself and plaintiff were working in same office at M.R Medical college Gulbarga. The defendant was working as a peon and the plaintiff is working in ministerial staff. Now and then the plaintifff use to obtain signature of the defendant on official papers and defendant believing upon the plaintiff 12 use to sign the papers thinking that they are official papers. The plaintiff might have obtained signature on the alleged agreement and receipt. The defendant do not know English reading and writing. The defendant never intended to sell the plots or any portion of the land out of 2 acres 8 guntas in land bearing survey No.43/1 without the layout is approved and he has not received any consideration amount from the plaintiff. The plaintiff is a man of litigant mind having criminal and civil cases in different courts. If at all the entire amount is paid why the sale deed was not executed. Nothing is mentioned in the alleged agreement. The layout was approved on 16-04-1991 then the defendant sold 6 acres of N.A land to Bhavani Housing Society, Brahmpur Gulbarga under registered sale deed. The defendant has contended that, these documents are created behind his back. With these main grounds the defendant has prayed to dismiss the suit of the plaintiff with costs.
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6. On the basis of the pleadings of the parties, the Trial Court has framed the following issues:
i. Whether plaintiff proves that, he was entered into an agreement of sale with the defendant in respect of the suit plots bearing Nos.7, 8 & 9 situated at survey No.43/1 of Badepur Taluka Gulbarga in separate parts of the contract of sale?
ii. Whether the plaintiff further proves that he is agreed to purchase the suit plots at Rs.10,000/- each and he has paid entire sale consideration of Rs.30,000/- to the defendant on his execution of agreement of sale?
iii. Whether the plaintiff further proves that defenant is not performing his part of agreement by executing the registered sale deed in respect of the suit plots in favour of plaintiff?
iv. Whether the plaintiff further proves that he is entitled for an injunction restraining the 14 defendant from alienating and encumbering the suit plots in favour of third parties?
v. Whether suit of plaintiff is barred by limitation?
vi. What order of decree?
7. The plaintiff examined himself as PW.1, one witness as PW.2 and got marked five documents Exs.P.1 to P.5. The L.R No.3 of Defendant examined himself as DW.1 and got marked two documentsas Exs.D1 & Ex.D.2.
8. The Trial Court after considering the pleading and evidence on record decreed the suit of the plaintiff.
9. Being aggrieved by the said judgment, the L.Rs of defendant have preferred an appeal in R.A.No.244/2004 before the Presiding Officer, Fast Track Court-VI Gulbarga. The First Appellate Court has re-looked into the matter after hearing both sides has 15 allowed the Appeal filed by the L.Rs of the defendants/appellant and reversed the finding of the trial court and in fact, dismissed the suit of the plaintiff.
10. Aggrieved by the same the plaintiff/appellant has preferred this Regular Second Appeal on the ground that the Judgment and decree passed by the first appellate court is illegal, arbitrary, vexatious, capricious, perverse and liable to be set aside. The Judgment and decree under challenge is passed contrary to the facts and documents produced on record, hence bad in law and liable to be set aside. The first appellate court has committed a grave error by stating that the plaintiff was not ready and willing to perform his part of contract, whereas the plaintiff has performed his part of contract completely. It was the defendant who has to perform remaining part of the contract. The first appellate court has failed to appreciate the fact that DW.1 has admitted his father's 16 signature on Ex.P1 and denies Ex.P.2 only by saying that the plaintiff has cheated but he has not produced any evidence to prove the signature of the defendant. The first appellate court has not considered the evidence of DW.1 which is contrary to the written statement. The first appellate court has not considered the fact that, one of the L.R of defendant has stated in his notice that his father had entered into the agreement and received the consideration amount of Rs.30,000/- and handed over the possession. The defendant after receiving the legal notice from the plaintiff has kept quite, so it is to be presumed that the transaction has taken place. The Judgment of the first appellate court is illegal, arbitrary and requires interference by this court and needs to be set aside. With these main contentions the appellant/plaintiff has prayed to allow the appeal.
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11. After hearing the appeal the following substantial question of law was framed by this court dated: 31-03-2006.
"Whether the first appellate court has committed any error in holding that the plaintiff has not proved the passing of consideration under Ex.P.1 and also execution of Ex.P.1 and also the ready and willingness on the part of plaintiff?"
12. I heard Sri.S.B. Hangarki learned counsel for the appellant and Sri.Harshavardhan R Malipatil learned counsel for respondents through video conference.
13. Sri.S.B.Hangarki, learned counsel for appellant argued that, the agreement of sale was executed on 06-03-1990 and defendant agreed to sell three plots to the plaintiff and received entire sale consideration amount of Rs.30,000/- and also executed receipt. The time was not essence of the contract. It was informed by the defendant that the plots were not 18 formed the layout plan was not approved before the concerned authority, so the time was not essence of the contract. In fact the plaintiff has made every effort and issued notice to the defendant on 15-03-1993 but it was returned with endorsement that, the defendant was not found. Again the plaintiff issued notice on 27-03-1993 which was refused by defendant. The defendant has suppressed that the said fact that the layout was approved on 16-04-1991 itself. The learned counsel for appellant contended that, again notice was issued in the year 1995 and no reply was received. Therefore the plaintiff was constrained to file this suit.
The learned counsel further contended that, the trial court based on the evidence of PW.1 and PW.2 has decreed the suit of the plaintiff. In fact during the course of pendency of suit, defendant died and on behalf of defendant his L.Rs were brought on record. Only L.R No.3 of defendant was examined as DW.1. The The defendant could have replied the notice if all he has 19 not executed the agreement. His contention is that, both plaintiff and defendant were working in the said department is not proved, but they are working in the same institution. He has examined PW.2 in support of his contention. The plea of cheating taken by the defendant and burden is on them to prove it, but the defendant has not proved it. If at all there was cheating there should have been complaint filed against the plaintiff, but no such complaint is filed against the plaintiff. The boundaries of the suit properties are admitted by DW.1 as correct. So the contention of defendant in the written statement is not correct. In fact DW.1 also doing plot selling business. So, if the evidence of plaintiff and defendant is considered, then it is evident that, the plaintiff has proved his case. In fact the observation made by the first appellate court regarding discrepancy of the same of stamp paper is not correct, as it could be seen the date is not 08-03-1990 but is 06-03-1999 only. The observation of the trial 20 court about bringing the stamp paper from Raichur to Gulbarga is not correct, the stamp paper might have been brought in the after noon. Ofcourse in typing receipt Ex.P2 the name of the father of defendant there is some typing mistake instead typing Channappa it is mentioned as Sharanapa, but it is not a ground to reject the plaintiffs case. The plot Nos.7, 8 & 9 are given after the approval of the layout. So there is no question of mentioning the plot numbers in the agreement. The plaintiff is in possession. So he came to know that the numbers of the plots are 7, 8 & 9. The size of the plot is not 30 feet x 40 feet is not proved by defendant. The first appellate court has not appreciated the evidence. Nothing remains to be performed by plaintiff as entire consideration amount was paid but only the execution of sale is to be done. One of the L.R of the defendant has admitted about it. So the learned counsel has prayed to set aside the Judgment of the first appellate 21 court. In support of his arguments he relied upon following decisions:
1) 2020(1) AKR 356 AIR Online 2019 Kar 2089.
Smt.Amita Gurunath Deshpande and others Vs Arvind Shripad Deshpande and others.
2) AIR 1952 MYS 114, Equivalent citations :AIR 1952 Kant 114 Lakshmamma and others Vs M. Jayaram
3) AIR 1984 Del. 20 Head note D para No.25 are relevant M/s Rudnap Export Import Vs Eastern Associates Co. and others
4) AIR 1959 AP 653 Head Head Note - B is relevant Govulu Ramakistiah Vs Yerram Yellappa
14. As against this, Sri.Harshavardhan R. Malipatil learned counsel for respondents would submit that, if with bare eyes the agreement stamp paper is perused then the date 06-03-1990 appears earlier it as 02-03-1990. So there is alteration and anti dating of the stamp paper. In fact the from Raichur to Gulbarga there is large distance. If at all the stamp paper was purchased at Raichur on the same day of the 22 agreement, then how it came to Gulbarga is not forthcoming. Because the distance of 180 kilo meters at that time requires atleast four hours journey. So, during office hours at Gulbarga one person has to go from Gulbarga to Raichur then bring it by traveling four hours and the agreement came to be executed on the same day itself appears to be improbable. The cross- examination of PW.2 clearly indicates that the document was created one. No plot number is shown in the agreement. No time is mentioned in the agreement. Therefore there is no meeting of the mind, there is no plot number mentioned. The question of handing over the possession does not arise. How the plaintiff stated plot Nos.7, 8 & 9 are given because as per the approved layout the said plots number size width is 20 feet x 60 feet. The layout itself indicates that the plots are not 30 feet x 40 feet. So there is no agreement about any definite property. If at all the plaintiff has paid the entire consideration amount in the year 1990 itself why 23 the notice came to be issued in the year 1995 i.e., Ex.P.5, why he kept quite for such a long time is not forthcoming. PW.2 has clearly stated that, the consideration amount was not paid in his presence. So when there is no proof of passing of consideration amount as part performance, the question of performing agreement does not arise. There is nothing stated on which day the possession was handed over. When there is no layout approved, from whom the plaintiff has taken the possession where is that document when there is no document of the said plot numbers. On the other hand, the first appellate court has clearly appreciated evidence of the parties and passed the Judgment. Even the father's name of the defendant is not correctly mentioned.
The learned counsel further argued that, original defendant is no more. Simply the contention of the learned counsel for the plaintiff that one of the L.R of the defendant has signed letter admitting the claim of 24 the plaintiff cannot be considered in the eye of law. Therefore, when the suit property itself is not definite as there is no plot number and as no evidence of passing of consideration amount and there is no meeting of mind then the plaintiff's evidence cannot be believed. When admittedly the measurement does not tally with the approved layout plan then the trial court has wrongly decreed the suit of the plaintiff. In fact it is in the evidence of both the parties that, the plaintiff and defendant were working in the same Institution and this defendant was working as a peon and not much educated. The plaintiff was working in ministerial section has managed to create this agreement of sale by taking undue advantage of illiteracy of the defendant. With these main contentions the learned counsel for the defendants/respondents has prayed to dismiss the Regular Second Appeal.
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15. In the light of the substantial question of law framed by this court, in the present Judgment of the trial court and first appellate court is to be considered.
16. According to the plaintiff the defendant has executed agreement of sale on 06-03-1990 and he has paid the entire consideration amount and the same was in respect of plots Nos.7, 8 & 9 situated in survey No.43/1 of Badepur Tq: & Dist: Gulbarga at the rate of Rs.10,000/- for each plot. It is also evident from the records and the evidence that the layout plan was approved from Panchayat Taj Sultanpur on 16-04-1991. It is also not disputed that this suit is filed on 10-05- 1995.
17. It is settled principle of law that, as per section 20 of the Specific Relief Act the said relief is a discretionary relief. The burden is on the party to who seeks relief to prove the readiness and willingness of the 26 plaintiff. He must also establish capacity to perform his part of contract by financial ability. The said willingness must be a genuine willingness and contract of the parties. These principles will be kept in mind while considering the case under the Specific Relief Act. The substantial question of law is also with regard to passing of consideration amount and readiness and willingness on the part of the plaintiff. So the entire burden is on the plaintiff.
18. It is pertinent to note that, the agreement stamp paper Ex.P.1 is a typed agreement of sale and it is the document on which the plaintiff has instituted the suit. But on perusing the agreement of sale Ex.P.1 it appears that, all is not well with the said document. There are certain aspects which are indicator about the genuiness of the agreement, the proof of said agreement and plaintiff's readiness and willingness. 27
19. Learned counsel for the respondents brought to the notice of this court certain infirmity appearing in the said document. First one is the signature of the defendant is not at the end of the first page, but it is on the top of the left side of the said stamp paper i.e. usually portion left for indexing which is very unusual signing of agreement. Further the date of agreement is 06th March 1990 it is mentioned that due to family necessity and in order to clear the debts the defendant Mallikarjun has entered into an agreement to sell three plots in the land bearing survey No.43/1 of Badepur each measuring 30 feet x 40 feet with common boundaries at rate of Rs.10,000/- for each plot. But there is no evidence that what was the family necessity or debt by this Mallikarjun is not forthcoming. In paragraph No.1 of the said agreement it reads that, he has agreed to sell all the rights, title, interest easement etc; including right of mutation to the first party unto the second party to have and to hold 28 the same absolutely as owner and the possession of the plots hereby agreed to sell have been delivered by the vendor to the second party and the second party is in possession of the same. So this recital indicates that as if the sale deed is executed transferring the ownership right title and also 'consent' to get his name mutated to the said plots. The said recital indicates as if this is a sale deed. It is settled principle of law that an agreement to sell the property under section 54 of the Transfer of Property Act does not create any right or interest in the property to be sold. But it is only a document to get another document, title deed i.e. registered sale deed. So this Ex.P.1 indicates that, even entire consideration amount is paid ownership of title is transferred even he has got right of mutation also, such a recital on this unregistered stamp paper of Rs.10/- would not create any right. It is also pertinent to note that, the said stamp paper was purchased as per the seal of the District Treasury on 06th March 1990 at Raichur and on 29 the second sheet it is mentioned that, this Mallikarjun has purchased the stamp paper from the stamp vendor who is at Raichur. There is also some over-writing of the date.
20. The learned counsel for respondents argued that it is 02-03-1990 but that cannot be believed because the stamp paper itself came out from the Treasury on 06-03-1990. It also appears that it may be 08-03-1990 or 07-03-1990 so that is also not clear. Ofcourse there is no signature on the correction of the said date. According to the parties this agreement was entered during office hours of the plaintiff and defendant. Admittedly both of them were working at Gulbarga. One Shivamurty stamp vendor has signed this stamp paper. It is pertinent to note that this defendant was working on the date of agreement stated to have been executed. PW.2 C.M.Vasanthkumar himself has stated during working hours itself he has 30 signed on Ex.P.1 & Ex.P.2 and he has signed on the same day the defendant was also on duty. So it appears that, the said witness and this plaintiff and defendant were working in M.R.M.C medical college Gulbarga. The distance between Raichur and Gulbarga is about 180 kilo meters and even now-a-days it requires four hours journey by road. This agreement stated to have been taken place in the year 1990 and the road conditions even during those days were not at all good. So the learned counsel for the respondent pointed out that, one has to go to Treasury at Raichur and take the stamp paper. The stamp paper was stated to be purchased on 06-03-1990 as per the seal of the stamp of District Treasury then the stamp vendor has to take the stamp and make entry. How this defendant Mallikarjun brought that stamp paper from the vendor at Raichur is not forthcoming. Because he was on the duty in MRMC medical college itself on the date of agreement. Who has brought that stamp paper is also not forthcoming. PW.1 31 has stated that, on the same day the defendant has brought the stamp paper, but he did not know from where he brought this stamp paper.
21. It is pertinent to note that, who has typed or drafted this agreement is not forthcoming. This defendant in fact has signed in Hindi language. He is admittedly working as a peon. Whether he knows English language or not is not forthcoming. How he brought stamp paper, from where he got typed this is also not forthcoming. This witness has admitted about correction of the date and he has stated that, he did not know about purchase of the stamp paper from Raichur Treasury. So there is no Deed writer or scribe to the agreement. It is also admitted by plaintiff that in the agreement that there was no mention of numbers of plot such as plot Nos.7, 8 & 9. PW.1 admits that at the time, no layout plan was prepared. So when there were no plots at all and how the possession was handed over 32 in respect of three plots is not forthcoming. He has stated in cross-examination that, at paragraph No.4 that oral agreement took place in his presence only and no other person was present at that time and he has not paid any consideration amount after the sale talks. That means the receipt and agreement contention that the amount was paid on that day appears to be not correct. He has admitted that, the boundaries shown in the sale agreement is not in conformity with the boundaries shown in the plaint. He has stated that he has paid the entire consideration amount on 06-03-1990 i.e., on the date of agreement in the presence of witnesses. Plaintiff has examined one witness Sri.C.M.Vasanthkumar as PW.2 The said Vasanth Kumar never stated in his examination in chief that consideration amount was paid under Ex.P.1. He never stated that any possession was handed over, nor any amount was paid. On the other hand, in the cross-examination he has stated that, the sale talks were not taken place in his presence. 33 The sale consideration amount was not paid in his presence. The defendant has also denied the payment of sale consideration, typing of contents of agreement on these two pages and typing receipt in English language requires lot of time. When and where this typing was done during office hours? and how this stamp paper was brought from Raichur to Gulbarga during office hours when the defendant was on duty at that time in office then who brought stamp paper from Raichur to Gulbarga. The contents of Ex.P.1 the nature of document and the signatures and alterations of the dates, all these factors clearly indicates that this agreement Ex.P.1 is not free from suspicion. Even in the receipt the father name of the defendant is typed as Sharanappa in fact it is Channappa. When witness to the said Ex.P.2 receipt itself stated that, the amount was not paid in his presence then Ex.P.2 is also not proved.
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22. Regarding readiness and willingness also there is nothing on record placed by plaintiff to believe his evidence. It is not mentioned in Ex.P.1 that this sale deed is to be executed only after approval of the layout plan. Nothing is mentioned in it. So this agreement is dated: 06-03-1990. The plaintiff has stated that on 15-02-1993 for the first time he issued notice, again he has stated that on 27-02-1993 he issued another notice to defendant which was refused, but no records were produced or evidence is placed in this regard, the defendant has denied it. It is admitted fact that the defendant died during the pendency of the suit before the commencement of the evidence. Again the plaintiff has stated that, later on defendant told him that layout was not approved. That is also not correct. Layout was already approved on 16-04-1991 itself. Even there are no records to show that the plaintiff has issued any such legal notice within a reasonable time asking defendant to execute sale deed. In fact the 35 defendant at paragraph No.4 of the written statement has stated that, the plaintiff has not issued notice on 15-02-1993 and another notice on 27-02-1993 and it was refused are all false. Defendant has stated that, he has not received any such notice either on the above dates, nor he has refused to receive any such notice. Therefore the contention of the plaintiff that he was ready and willing to perform his part of contract and asking the defendant to execute sale deed are not proved.
23. The learned counsel for the respondents drawn attention of this court to the layout approved plan Ex.D.1 which is also admitted by the plaintiff. In the said layout in land bearing survey No.43/1 situated at Badepur in respect of this defendant the layout was approved on 16-04-1999 where the layout is shown with numbers of the plot. It is also mentioned in the records that, total number of plots were 47, there are eight plots 36 are size of 30 feet x 40 feet, these plots are shown from numbers as plots Nos.39 to 46 measuring 30 feet x 40 feet then there are fourteen plots of size measuring 30 feet x 45 feet, then there are twenty five odd size plots measuring 30 feet x 45 feet. This odd size plots starts from plot Nos.1 to 23 then the site No.47 then site No.24. So these are the different size plots and the sizes of the plots goes on varying from 40 feet to 50 feet, then 50 feet x 55 feet, then 63 feet x 65 feet upto 23 plot No.7, 8 & 9. These plots comes under the area shown as 40 feet x 50 feet. Therefore the contention of the plaintiff that the plot Nos.7, 8 & 9 are not the plots sold to him and they measures 30 feet x 40 feet is not correct as they are of different size. In fact there was no number is given to plots when the agreement was stated to have been executed, nor there were any size of plot in the said land. There was no layout out plan prepared or approved. So the contents of this agreement and the evidence of PW.1 and PW.2 clearly indicates that, 37 passing of consideration under Ex.P.1 is not proved by the plaintiff and also readiness and willingness also not proved. Because DW.1 son of the defendant has clearly stated that, his father was working as a peon in MRMC medical college and even he was not able to read and write in English and Kannada language and only his father knows Marathi language. In fact the signature appearing in those papers are in Marathi language i.e., Hindi language. He has stated that the plaintiff and his father were working together in MRMC medical college. The plaintiff by cheating his father has taken the signature of his father. The office hours of the said college is from 10.00 a.m. to 4.00 p.m.
24. It is evident that, when the agreement Ex.P.1 is stated to have been written, there was neither the land was converted nor there was any plot numbers 7, 8 & 9, nor there was any measurement. The payment of consideration is also not proved. When there is no 38 meeting of mind, that agreement itself appears to have been very vague one. Why the plaintiff has issued notice Ex.P.3 only in the year 1995, why he kept quite for about five years, if at all he has paid the entire consideration amount when the layout was approved in the year 1991 itself ? is not explained by plaintiff. How a person can enter into agreement of sale in respect of the plots which are not in existence?. When there is no layout and no plot numbers are given, there is no question of handing over the possession of these plots. Therefore, arguments of the learned counsel for the appellant that the time was not essence of the contract as the plots were not approved and the layout plan was not approved from the concerned authority, the plaintiff kept quite, but the said contention cannot be accepted. Because no records or evidence is produced to show that he has issued any notice prior to 1995. The payment of consideration amount is not proved. There is some over-writing of the date of agreement. The 39 stamp paper of agreement is brought from the Treasury of Raichur which is far away from Gulbarga. The distance is about 180 kilometers and the time requires four hours journey to Gulbarga. The defendant was on the duty. How he has purchased the stamp paper from Raichur itself is not clear?. The learned counsel for the appellant argued that, DW.1 who is the son of defendant is doing plot selling business. No complaint was lodged against the plaintiff by making allegation of cheating. So the document cannot be disbelieved. But simply because the complaint was not filed that does not mean that the contention of the plaintiff is true and correct. The defendant is no more, he was working as a peon and according to DW.1 he was not able to read and write English and Kannada language. Even the size of the plots itself is not 30 feet x 40 feet. Ex.D.1 clearly indicates that these plots numbers 7, 8 & 9 are of different measurement and the plots site measuring 30 feet x 40 feet are of different numbers.
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25. The first appellate court in its Judgment has clearly considered all the aspects and also stated how the trial court has erred in decreeing the suit of the plaintiff. So the first appellate court has discussed how there appears to be doubt about the genuiness of Ex.P.1 about the purchase of stamp paper Ex.P.1 from Raichur which is far away from Gulbarga when admittedly this defendant was also on duty. Even PW.2 has stated that sale consideration was also not paid by the plaintiff in his presence as stated by plaintiff. So this witness has never stated anything about handing over of possession. The plaintiff has not examined any witness to show that he was in possession as on the date of agreement or on the date of suit. So possession was not proved, payment of consideration amount is not proved, purchase of stamp paper of agreement and execution on the stamp paper that too in English language itself clearly indicates that, all is not well with agreement. The 41 reason given by the first appellate court about appreciation of evidence of PW.1 and PW.2 is correct. Because PW.2 has already stated that, the signature of the defendant was already appearing before he put his signature. The measurement of the plots also differs in Ex.P.1 when compared to Ex.D.1. The southern boundaries are also not tallying. The first appellate court has given reasoning as to how the answer of the trial court regarding issue Nos.1 & 2 are not correct. The first appellate court has clearly held that the trial court has wrongly come to conclusion that the defendant was not ready and willing to perform his part of contract. That conclusion is against the provisions of Section 20 of the Specific Relief Act. The first appellate court has relied upon the decision of this court and also the conduct of the plaintiff. Just prior to twelve days filing of the suit the plaintiff has issued notice in the year 1995. So when the agreement is of the year 1990 no person will keep quite if he has paid the entire 42 consideration amount for nearly about five years to get the registered the sale deed. If at all this plaintiff was ready and willing to purchase the said plots and if at all there was any agreement he could not have kept quite for five years. Simply issuing of notice Ex.P.3 and simply because the defendant has not replied it does not mean that the plaintiff was ready and willing to perform his part of contract and it was the defendant who was not ready. No such presumption can be drawn. In fact the very agreement Ex.P.1 itself is not proved.
26. The first appellate court has clearly held that, non giving reply to the notice Ex.P.3 does not amount to admission of the entire claim of the plaintiff by the defendant. It is only an admission regarding receipt of the notice. For that, defendant has stated in his written statement that he personally met the plaintiff on the very next day informing him issuing of such false notice which is there in paragraph No.4 of the written 43 statement. Therefore, the first appellate court has discussed regarding possession and come to the just conclusion that the plaintiff has failed to prove the possession also. The passing of consideration amount under Ex.P.2 is not proved and even execution of Ex.P.1 is also not proved the first appellate court has not committed any error in giving such finding. Readiness and willingness on the part of plaintiff is also not proved as discussed by the first appellate court.
27. The learned counsel for the appellant argued that, in fact when the defendant died his L.Rs were brought on record and one of the L.R has written a letter to the trial court admitting the transaction by his father. It is stated that one of the L.R Sri.Chanamallapa has issued notice to Sri.Amrut Rao Patil Advocate stating that he has already given Vakalat to another Advocate. So he has requested the said counsel to withdraw his vakalat and in the said notice he has 44 stated that, his father has entered into the agreement and received sale consideration amount and handed over the possession. The said xerox copy along with Vakalat of one Sri.N.Krishnacharya which is available in the file which is pointed out by the learned counsel. But it is very pertinent to note that, this Channamalappa has signed in Kannada language on the Vakalat of Sri.Amrut Rao Patil. In fact in the Vakalat of Sri.N.Krishnacharya that signature of Channamalappa is in Kannada language. But signature on this letter which is sent to court is not at all in Kannada language, but signature is in English language. The original of it is not produced. Further how this document has come in the file is not forthcoming. Because even the date of that document is not appearing. No where in the order sheet of the trial court there is any mention about this. The order sheet indicates that, L.R No.4 has appeared through one N.Krishnacharya and Sri.Amruth Rao Patil stated 45 about withdrawal of the power and thereafter words the said Amruth Rao Patil himself continued for the L.Rs of the defendant. So neither the said L.R of defendant has taken any steps to terminate Vakalat, nor it appears that N.Krishnacharaya has taken steps to appear. Signature on the said Vakalat and this notice are totally different which itself creates doubt about genuiness of the said letter. Moreover no person will write any retirement notice mentioning about the pleadings of the case and admission. It appears that with malafide intention something is tried to be created from the plaintiff side. Such a document cannot be accepted as a admission of one of the L.R as the signature are totally different from the Vakalat and the said notice which are accompanying with each other. It appears that false document is created by the plaintiff. Moreover no questions were put to any of the witness in this regard. The said L.R neither appeared before court and not given any evidence in this regard. There is no 46 opportunity for the defendant or his counsel to state anything about the said document. It is settled principle of law that only a documents which are produced as a evidence in court can be looked into as evidence when the document is produced and marked in the evidence. Then only that document can be considered as evidence. It is settled principle of law that, even if the document is marked the proof of document is again another aspect which is required to be proved as per the Evidence Act. Therefore section 61 of Evidence Act will not help the plaintiff when the court has not mentioned anything about the said termination of the Vakalat, nor Vakalat of that Advocate is terminated. So, such contention will not help the plaintiff in any way. It appears that, the plaintiff having failed to prove due execution of agreement, passing of consideration amount and to overcome his failure to prove the readiness and willingness appears to have played some trick in this case which will not help in any way. On the 47 other hand it strengthens the case of the defendant about falsity of this agreement, the very purchase of plots and contents of the agreement, passing of the consideration amount, mentioning of those plot numbers. As contended by the learned counsel for the defendants/respondents that just to misuse the ignorance and illiteracy of the defendant who admittedly signs only in Marathi language. When there is nothing to show that he knew English language, no relief can be granted on such document. So that contention also does not holds good.
28. The learned counsel for appellant/plaintiff relied on decision of this Court reported in 2020(1) AKR page No.356 AIR Online 2019 Kar. 2089 in case of Smt.Amita Gurunath Deshpande and others Vs Arvind Shripad Deshpande and others at Head Note (A) and paragraph Nos.38 & 39. But the said decision is on Succession Act. Evidence Act under Sec.68 - Will - 48 Execution - Proof-. There is nothing in paragraph Nos.38 & 39 which could help this plaintiff.
29. The learned counsel has also relied upon decision of this court reported in AIR 1952 MYS 114 in case of Lakshmamma and others Vs M Jayaram regarding admission of signature or thumb impression on a document and onus of proof of execution of document. That is regarding burden of proof of document onus of the signature, where the signature is admitted yet will again the facts of that case are totally different. The defendant has clearly stated in his written statement that, he was working as a peon and admittedly the plaintiff was working in the same college in ministerial cadre. His signature on the stamp paper of first page is not appearing in a place where normally and always the documents which are executed by the parties or any type of deed is signed. The signature itself is not below the writing of the said agreement in first 49 page. But it is very strange on the left side that too on the top of the said page signature is appearing which is very unusual when compared to signing of any deed or in agreement. The language of the signature is also in Marathi language. There is evidence of DW.1 is that, his father was a peon and he did not read or write Kannada or English language. PW.2 has also admitted in his evidence that the defendant has not signed any document in his presence, nor any consideration amount is paid. The said agreement itself is typed in English language who has typed it is not forthcoming. There is no scribe to the said document. Nobody signed as a scribe or author. Therefore under such circumstances this decision will not help the plaintiff/appellant in any manner.
30. The learned counsel for appellant/plaintiff relied upon decision reported in AIR 1984 Delhi 20 in case of M/s Rudnap Export - Import Vs Eastern 50 Associates Co. and others - Head Note D para No.25- Regarding section 61 of Evidence Act. Ofcourse that decision will not help the plaintiff in this case. In that case there were some correspondence. The matter was between some Export & Import Vs Eastern Associates Co. and others about some sale and bills transferrd. That decision will not help the plaintiff/appellant to support his stand.
31. Further the learned counsel for appellant/plaintiff relied upon decision reported in AIR 1959 AP 653 in case of Govula Ramakistiah Vs Yerram Yellappa - Head Note B. Again this decision is regarding Evidence Act, burden of proof and though principle stated in that decision about the proof of due execution of document are not disputed but here the due execution of agreement itself is not proved by the plainitff, as discussed by the first appellate court. Therefore, the decisions relied upon the learned counsel 51 for the plaintiff/appellant will not help the plaintiff in any way. On the other hand the first appellate court has rightly relied upon the decision reported in 1) 1993 (1) Karnataka Law Journal 196 in case of Saraswati anmal Vs V.C Lingamma and another 2) ILR 2005 Karnataka 3555 in case of Suresh Naryan Gulwani and others Vs Vimaladevi and 3) AIR 2004 Punjab and Haryana 253 in case of Malkayat Singh Vs Omprakash. In view of these decisions the first appellate court has rightly come to the conclusion that the trial court has erred in decreeing the suit. Accordingly the substantial question of law raised in this case is answered in the negative and it is held that the plaintiff has not proved passing of consideration under Ex.P.1 and also execution of Ex.P.1 and also the ready and willingness on the part of plaintiff. Accordingly the appeal being devoid of merits and liable to be dismissed.
Hence I pass the following:
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ORDER The Regular Second Appeal is dismissed.
The Judgment and decree passed by the District Judge, Fast Track Court-VI Gulbarga in Regular Appeal No.247/2004 dated: 13-01-2006 is hereby confirmed The parties are directed to bear their own costs.
Send back the secured records to the concerned courts forthwith.
Sd/-
JUDGE MNS.